You must follow no-Fault absenteeism policy to the letter

Companies often rely on a no-fault absenteeism policy as an objective way to determine who should be terminated for unreliability. As long as the policy doesn’t count time off for an FMLA-protected reason, such policies work well—if you follow your own rules.

You can, of course, set additional requirements in special circumstances, such as for new employees. But if you do, make sure you follow to the letter the terms you and the employee agreed upon. Otherwise, an employee who has taken FMLA leave may sue, alleging retaliation or interference with leave rights. Any deviation from company policies will look suspicious.

Recent case: Confessor Ramirez worked as a bus driver and missed work due to diabetes and injuries suffered in an auto accident. He was fired for unrelated absences and then rehired after his union filed a grievance.

To get his job back, he agreed that he would be on probation for 12 months and would not miss more than seven days. The company’s regular absenteeism policy stated that employees who “are sick ten (10) times or a maximum of twenty-five (25) days …” would get a warning and could be discharged.

Twelve months passed, and Ramirez got a written warning stating that he amassed nine absences. He immediately applied for FMLA leave. He was then fired for absenteeism.

Ramirez sued, claiming he was entitled to 10 days, not nine under the regular policy. The employer had apparently believed he was still working under the reinstatement agreement when it fired him for missing more than seven days. The court looked at the employer’s timing and rationale and found it suspicious enough to warrant a trial. A jury will decide whether this is a case of a mistake (thinking Ramirez had already used up his absences) or punishment for asking for leave. (Ramirez v. Palm Tran, No. 07-81039, SD FL, 2008)

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